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How Long Do Police Have to “Observe” a DUI Suspect Before Administering a Breath Test?

It is common practice when someone is arrested on suspicion of drunk driving for the police to request a breath test. The results of such tests are often the key piece of evidence in a criminal DUI prosecution, as by law anyone with a blood-alcohol content (BAC) of 0.08% or higher is considered legally intoxicated.

Due to the critical importance of such evidence, there are actually specific procedures and regulations that law enforcement must follow when administering a breath test. For example, Maryland state regulations require the subject of the test cannot eat, drink, smoke, or have had any foreign substance in their mouth or respiratory tract for at least 20 minutes prior to the test. In other words, you do not want something like a piece of chewing gum to potentially compromise the BAC reading from the testing machine. The regulation further requires the test operator or another member of law enforcement to “observe” the subject during this 20-minute period and check their mouth just before giving the test.

Court of Appeals: Noncompliance With Waiting Period Does Not Render Test Results Inadmissible

But as the Maryland Court of Appeals recently explained, a failure to strictly observe this 20-minute observation period will not automatically render the results of a blood test inadmissible in court. However, any deviation from the regulations may be considered when weighing the credibility of the test’s results.

The case before the Court of Appeals, Dejarnette v. State, began when a Maryland state trooper was on patrol early one morning and observed a vehicle making an improper lane change. The officer initiated a traffic stop. Upon making contact with the vehicle’s driver–the defendant in this case–the trooper suspected DUI based on the smell of alcohol coming from the car, as well as the defendant’s appearance.

The trooper administered field sobriety tests. For his part, the defendant admitted to having a “couple of drinks” several hours earlier. After completing the field tests, the trooper arrested the defendant and took him to a nearby police barracks. Approximately 31 minutes passed between the time of the arrest and the time when the police administered a breath test to the defendant, which showed he was over the legal limit.

At trial, the defense argued the test results were invalid because the trooper did not continuously observe the defendant for 20 minutes prior to the test. The trial court rejected that argument. A jury proceeded to convict the defendant of DUI.

The Court of Appeals ultimately held the trial court did not commit any legal error. Even assuming the police did not strictly follow the 20-minute observation rule, any alleged noncompliance “goes to the weight to be given to breath test results, not to admissibility of results.” That said, the Court went on to say that the facts of this particular case established that the officers did, in fact, comply with the 20-minute observation rule.

Contact Prince George’s County DUI Lawyer Robert Castro Today

This article has been provided by the Law Office of Robert Castro. For more information or questions contact our office to speak to an experienced lawyer at (301) 705-5137.